The General Workers’ Union (GWU) has launched a campaign to create awareness regarding the need for a reform of the Industrial Tribunal. GWU is concerned about the composition and constitution of this tribunal. The driving force behind the trade union’s argument is that the government is not distancing itself enough from the operations of the tribunal. Hence, the principle of impartiality is undermined.
The Industrial Tribunal is a specialised judicial body, established under the Employment and Industrial Relations Act (EIRA) (216Kb PDF), and given exclusive jurisdiction over employment and industrial relations conflicts. For all intents and purposes, the tribunal serves as Malta’s industrial court. The tribunal is chaired by a member of a panel appointed by the prime minister, following consultation with the Malta Council for Economic and Social Development (MCESD) – Malta’s national tripartite social dialogue institution set up by an Act of Parliament in 2001 (MT0710029I). Such persons serve as chairs of the tribunal either in turn or according to competences in specific cases. The tribunal also includes two additional members, chosen from two other panels, each representing in turn the interests of employers and employees. Both of the latter panels are also appointed through the MCESD.
Reform campaign launched
In April 2008, the General Workers’ Union (GWU) launched a campaign to exert pressure on the government for a reform of the Industrial Tribunal, particularly with regard to the tribunal’s composition, constitution and impartiality. GWU expressed its concern about the operations of the tribunal and called on the newly-elected Minister for Social Policy, John Dalli, who is responsible for industrial relations, to make the necessary reforms to ensure impartiality of the tribunal’s operations. The trade union requested that the case be dealt with urgently. Furthermore, GWU went on to present two constitutional applications in court claiming that the tribunal’s present situation was denying it from a fair hearing, thus acting against Malta’s constitution (303Kb PDF) and the European Convention of Human Rights.
Proposal for reform
GWU put forward four main principles relating to the tribunal’s operations that need to be reformed. First, according to GWU, the EIRA impedes the Industrial Tribunal from acting as an independent body, as the act states that the government is responsible for nominating its own representative on the tribunal.
Secondly, the tribunal is obliged to take into consideration the government’s social and economic policies in reaching a decision. The trade union argued that such an obligation was hindering the objectivity of the tribunal members, especially in cases involving semi-state organisations. In these cases, the members’ decision latitude is restricted so that it falls in line with the government’s economic policy. As an example, GWU referred to the hearing of a case it brought before the tribunal regarding a former Enemalta Corporation employee. In this instance, the trade union claims that there was a lack of impartiality in relation to the hearing since the tribunal panel was appointed by the government, which owns Enemalta. Thus, GWU argued that the employee in question could not be given a fair trial.
Thirdly, the trade union claimed that the tribunal’s members cannot act in an independent and impartial manner as they do not have security of tenure. Finally, GWU expressed its disagreement about the right given by law to the Industrial Tribunal to seek advice and opinions from third parties, who are not related to the case.
Furthermore, GWU complained that witnesses in some cases are called to substantiate their evidence after several months have elapsed. In conclusion, the trade union stated that it was ready to discuss matters and meet with government representatives to offer its cooperation towards implementation of the reforms. It also expressed hope that the issue would be dealt with before the court hearings are held.
Commentary
The Industrial Tribunal represents an essential system for maintaining and ensuring industrial peace. Past experience shows that the tribunal’s decisions are generally respected. To date, the social partners have not undermined the authority of the tribunal afforded to it by law. The EIRA was enacted five years ago after prolonged discussions among the social partners. GWU seems to be implying that the law, particularly in relation to operation of the Industrial Tribunal, needs some finetuning in order to enhance its level of legitimacy. So far, the other main social partners have not publicly responded to GWU’s proposals.
Christine Farrugia and Saviour Rizzo, Centre for Labour Studies